Adverse judgments and the rule of law

In previous years, governments that disagreed with judgments of the country’s highest appellate court would legislate in accordance with established constitutional principles to change it. This would involve a debate and a vote as an amending Bill passed through all of its stages in Parliament. Thus, when the House of Lords in Burmah Oil v Lord Advocate [1965] AC 75 held that the applicant was entitled to compensation for damage to its installations carried out by British Troops during the war to deny their use to the enemy, the Government responded by enacting the War Damages Act 1965 which retrospectively deprived Burmah Oil of its compensation.

The enactment of retrospective legislation is properly regarded as odious in the extreme but in that case perhaps justified in that it was thought that it was morally wrong that a large and wealthy multinational oil company whose commercial activities remained intact in a war fought by British soldiers who destroyed its facilities in Burmah should now seek to enrich itself further at the expense of the taxpayer in an economy in 1965 that had still not recovered from the war. But at least such arguments were fully aired in Parliament during the passage of the Bill, as indeed was Margaret Thatcher’s War Crimes Acct 1991 which was retrospective by 50 years at the date of its enactment.

Today, our government is rather more Machiavellian in seeking to destroy judgments with which it disagrees.

A-S and others v Secretary of State for Defence [2007] UKHL 26 held that British soldiers who imprison detainees during military campaigns abroad are bound by the Human Rights Act 1998, which prohibits torture and inhuman or degrading treatment The law lords dismissed arguments by the Ministry of Defence and by Lord Goldsmith, the attorney general, that the act did not apply to UK forces detaining foreign prisoners, in particular Baha Mousa, a Basra hotel receptionist who died while in British custody in 2003.

By a four to one majority, their Lordships ruled that the jurisdiction of the Human Rights Act applied overseas, including to detention centres over which British troops had "effective control".

The response of the government is not to engage Parliament in any debate, or risk potentially embarrassing controversy in the Press, instead, it has sought to engineer a very ‘British’ solution to the problem as they see it by ensuring that those affected by Human Rights abuses abroad are prevented from bringing cases against the Ministry of Defence by denying them access to legal aid to do so.

In its consultation Paper CP 12/89 entitled:Legal Aid: Refocusing on Priority Cases it states, at page 30:

“Our proposal is that legal aid would not normally be available for those who did not reside in the UK. Funding would continue to be available for British citizens (whether they were resident in the UK or not), and for citizens of some Commonwealth countries who have a right to settle here.”

Of course, the statement has the caveat that funding would be made available in ‘exceptional circumstances’ but it remains very doubtful indeed if a group of impecunious Afghanies either now or at some time in the future with a potentially valid claim against the United Kingdom government would be deemed ‘an exceptional circumstance’ by any government minister who values his job who would commit political suicide by exercising his discretion in favour of having such a case tested before the court..

While such an approach might be welcomed in some quarters, it says much about the attitude of the Government to the rule of law and the value it places on the intrinsic value of human beings.

The government has thus far managed to enact legislation undermining the work of any public inquiry, has succeeded in applying the same formula to determine the outcome of Coroners findings, it has made United Kingdom Subjects responsible for paying the full amount of of their legal costs should he or she be acquitted of a criminal offence and it now it appears highly likely that it will succeed in burying any legitimate claim made against it originating from abroad in respect of any Human Rights violations perpetrated against foreign nationals by United Kingdom subjects.

I await with interest the government's response to their 'consultation' on this issue.
MBLU said:
Section 6(8)(b) of the Access to Justice Act 1999?
This provision allows the Lord Chancellor a discretion to direct the Legal Services Commission to allocate legal aid funding in respect of those cases falling within Schedule 2 of the 1999 Act.

Of course, the Lord Chancellor is Jack Straw who is also the Secretary of State for Justice who produced the consultation document!

You could'nt make it up!

Edited to add, that if one looks at section 6(7) of the 1999 Act, the Lord Chancellor who has the power of discretion also has the power to amend the contents of Schedule 2 to by addition or delection!!!

Parliament has therefore given him the express power to fetter his own discreton!
Our job is to destroy the enemy within the rule of law without declaring war on the population in which he lives.

I would say that the Army, as a whole, has an extremely well-deserved reputation worldwide for its Christian humanity. There have been many occasions when its displine has been severely tested when its soldiers have been shot at, shat at and spat at by a hostile population when it has has stood firm, refused to be goaded and acted with a restraint which has not always been in evidence by some other field armies subject to similar stresses.

What we simply cannot afford is for our politicians to tarnish our reputation for fairness and impartiality by conveying to the world that in cases where any individual breaks and 'loses it' that he is given legal aid and a support system to defend an action brought against him in court while the family of his victim are denied it.

If we are seen to be operating in that way by perpetuating a situation of inequality of arms in the pursuit of justice we hand our enemies the moral case for suggesting that it is our government who holds the lives of their populations in contempt!

What do you say to an Afghani Tribeseman whose heart and mind you are trying to win over has been told by the Taliban that the British can murder him with impunity and never face a court because his family are too poor to go to the British for justice?

Do idiots in the Ministry of Justice actually bother to take these factors into consideration when they issue such 'consultation documents'?
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